Saturday 10 June 2023


THE Constitutional Court (ConCourt) has ordered Parliament to review Statutory Instrument 144 of 2022, whichdrastically increased the nomination fees for candidates seeking to run for public office in the August 23 elections.

The ConCourt bench led by Deputy Chief Justice Elizabeth Gwaunza ruled that Parliament had breached the Constitution by not looking at whether the statutory instrument (SI) was in contravention of the Constitution before passing it.

The court ordered Parliament to review the SI by June 16.

The ruling comes after leader of the Nationalists Alliance Party (NAP), Devine Mhambi Hove filed an application at the court arguing that Parliament had failed to fulfil its constitutional obligation to consider whether the SI was in contravention of the Constitution.

In his heads of argument, Hove argued that the Constitution tasked Parliament to examine all statutory instruments before they are gazetted.

“As already noted in part 1, the applicant has pleaded that the obligation in section 152(3)(c) of the Constitution is on Parliament itself through the Parliamentary Legal Committee.

“Put differently, the obligations imposed by the Constitution on the Parliamentary Legal Committee are obligations on Parliament within the contemplation of Section 167(2)(d) of the Constitution.”

The statutory instrument, which was gazetted last year, increased the nomination fees for presidential candidates from US$1 000 to US$20 000.

Nomination fees for the National Assembly and the Senate were increased from US$50 to US$1 000.

When the parties met before a seven-member judges panel on Friday, Hove, through his attorney, Lovemore Madhuku argued that Parliament should be held responsible as the Parliamentary Legal Committee (PLC), which reviews laws before sending them to the Senate, was housed within Parliament.

He argued that the PLC had not fulfil its obligation as it did not review the law, but rather claimed that it was waiting for the outcome of a case that is currently pending before the High Court.

“I submit that a proper interpretation of the Constitution, a duty imposed on a parliamentary committee is a duty imposed on Parliament,” Madhuku said.

“An obligation of the Parliamentary Legal Committee is imposed on Parliament.

“The Parliamentary Legal Committee has not done what they are supposed to do.

“In their heads of argument, they clearly state that they are waiting for the finalisation of the case pending at the HC.

“We argue that the court finds that the Parliament has failed, it must say so.

“The PLC must examine the SI and report its findings.

“That outcome is not based on whether it is adverse or not.

“The PLC must tell whether it is constitutional or not.

“Applicant in paragraph 15 makes clear the basis of his allegation of failure. He says they failed to consider SI 144 and see whether it went against the Constitution.”

Tawanda Zhuwarara, who was representing Parliament, argued that the Legislature had fulfilled its constitutional obligation by considering the SI.

He argued that the application should be dismissed as it was trying to have the nomination fees reviewed through the backdoor by asking the Constitutional Court to sit as a court of review.

“Page 22, which is the draft order, asks the court to declare that in respect of SI, Parliament failed to fulfill its constitutional obligation under s152(3)(c).

“At record, page 36 you will see that the committee did sit and consider SI144.

“So you will see that Parliament did do what it is required to do and they formed an opinion that the SI did not violate the provisions of the Constitution.

“The applicant says Parliament did not protect his right to become a candidate.

“For it to be laid to rest, paragraph 22 confesses what the applicant wants the court to do.

“It says it wants this court to consider what the appropriate amount the applicant should pay for him to stand as a presidential candidate.

The PLC examines all the SI before reporting to Parliament, minister or President if the SI contravenes a section of the Constitution.

“What activates the report is an adverse view that the Statutory Instrument violates sections of the Constitution.

“The report is then made to Parliament. Parliament consists of the Senate and National Assembly.

“They then form their own view and decide what they want to do with the SI. There is a pathway.

“A parliamentary system allows Parliament to analyse the legal repercussions of the law.

“The PLC did analyse the SI. The problem is that their decision was something that was not to the liking of the applicant.” Newsday


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